Theories of Punishment

Rehabilitation is the theory associated with the Idealist temperament and is the most refined of all four. To execute it properly, you have to inflict the exact same amount of harm the offender inflicted on you and of the exact same kind.

You say, essentially: “You hurt me greatly. But you don’t seem to care too much. Let me make you feel exactly as you made me feel, and maybe then you’ll understand how evil your actions were.” You do this for the sake of the offender, to reform him, to make him a better person.

This requires interpersonal utility comparisons which is subtle and tricky.

Retribution is the Guardian punishment. It, too, requires proportionality, but it’s more flexible, needing only the same amount of harm but not the same kind of harm. The case of theft is easiest and where retributive punishment is most similar to rehabilitative. Smith stole $2,000 from Jones, so Smith should first offer restitution to Jones, i.e., give the money back, but then he should also be punished extra with a $2,000 fine to paid to the government. However, the fine could in this case be replaced with, say, 30 days in jail.

Retribution is “justice.” Punishment inflicted for this reason is what the criminal “deserves.” The harm to the victim is fully deflected and is 100% redirected back onto the criminal in the manner of Newton’s third law. The proper cosmic order of things is thereby restored.

Deterrence, devised by Rationals to contain Barely Humans, no longer requires proportionality. However, it can feature it. A law stipulates a punishment of X years in prison for stealing a car. It so happens that without the law, car thefts would double; in other words, the law deters 50% of the relevant crime. In that case, from our utilitarian point of view, the harm spared to the victims must be balanced by the harm to the criminals from the state. X’s disutility should then be less than or equal to the average unhappiness felt by a car owner from having his car stolen.

It need not feature it, however. If (1) a fine of $10 deters 90% of car thefts, yet (2) 5 years in prison deters 90.1% of car thefts, then the former punishment is much better, since the thieves remain members of society whose happiness the legislator is trying to maximize. The harm to them from (2) is enormous, yet the social benefits are negligible. The cause of the greatest pleasure for the greatest number is better served with (1).

Condemnation, visited by Artisans upon Monsters, does not even require a crime! It’s not even punishment for any specific crime but preemptive social self-defense based upon a judge’s belief that the offender is totally depraved and will surely commit further crimes in the future. (In this case it differs from normal individual self-defense in the present.)

It follows from our understanding of punishment that the proper reason for punishment should be invoked by the sentencing judge in sequence.

If it is possible to punish the criminal with the same harm and of the same kind he inflicted upon the victim, then this is what should be done. This will incidentally serve to rehabilitate.

If that’s not possible, then at least deal the same amount of harm even in some generic non-cruel-or-unusual manner, such as a fine or prison term. This is retribution.

If even this cannot be done, the judge should at least try to maximize social welfare (while considering the criminal to be a member of society) by calibrating the harm to the criminal to be smaller than the social benefit of the reinforcement of deterrence.

And if that does not work either, then the criminal should be cut off from society as a cancerous cell from the body and imprisoned for life or executed.

We can see from this that retribution is prior to deterrence, so Rothbard is right in favoring the former over the latter. But he is mistaken in criticizing rehabilitation as some sort of psychological brainwashing in an insane asylum; rehabilitation is simply a refined version of retribution designed to make the offender feel exactly as bad as he made his victim feel.

When legislators write laws or the penal code, their only concern is deterrence, though standards of condemnation can also be codified, such as in three-strikes laws.

Let’s consider for the sake of simplicity property crimes, like theft. If detection of crimes and capturing criminals on the lam were 100% efficient, then punishments would be entirely superfluous, and restitution alone would serve to deter. What is the point of stealing if you are inevitably found out, caught, and forced to return the money? If no one could profit from his own wrong, then no one would try to do wrong.

But of course detection and capturing criminals are very imperfect and expensive. With only restitution, a guy would think: “There is a 50% chance that I get caught and the same chance that I get away. If I get caught, all I’ll have do is return the money; if not, I get to keep the loot. I like those odds.” But if in addition he were threatened with a year in prison if he got caught, then perhaps he would change his mind.

The law is general and people may be positioned differently regarding their odds of getting caught, so it’s an imperfect solution. But in a trial, there are tools to help: for example, trying to conceal wrongdoing can result in a harsher punishment both for the sake of deterring crimes marked by a lower probability of detection and to spare society the cost of administering justice, such as investigations of crimes.

Punishments then over and above restitutions are stipulated in order to compensate for the imperfect and costly system of justice. As we can see, the act of the legislator promulgating punishments for a crime in general is very different from the act of a judge imposing a sentence for the same crime in its full concrete particularity.

The legislator cares only to repair the defects of the real-world pure restitution regime which nevertheless serves as an ideal.

For the judge, however, this purpose is nugatory. If the law demands a punishment of no more than 3 years in prison for stealing a car, the judge needs to decide whether punishment is appropriate and if so, then how much, of what kind, and which of our four theories described below is to be invoked in its formulation. Thus, if his sentence is to take away the criminal’s own car and his driver’s license, say, we can say this is a sophisticated attempt at rehabilitation: let the thief fully feel what it was like for his victim to suffer.

In the case of simple theft, estimating restitution is fairly easy. But how about armed robbery? How much is being threatened with death unless one pays up worth? How about murder? Assault that results in a permanent injury to the body? What if the amount of restitution has been calculated to be very high, but the criminal has already spent the looted money and is now poor? I think the legal system has to do the best it can in figuring restitutions, while being aware of the limits to its power to heal the victim.

There is still a tension here between the points of view of the legislator and the judge. The range of punishment set by the lawmaker is supposed to take away any remaining after restitution profit to the criminal of wrongdoing plus something extra to compensate for imperfect detection and to contain the costs of the justice system. (For example, a typical city might have a 2% income tax. It cannot up and raise the tax to 20% in order to pay for more investigators; first, property values would tank and second, people would start moving out in droves.) The judge has our 4 theories to juggle. But shouldn’t the judge just use his discretion to assist the legislator in his rationale for punishing?

In effect, in promulgating a penal code, the legislator aims to minimize the combined cost of

crime to the victims,

punishments to the criminals, and

the justice system itself including investigations and enforcement such as prisons.

We normally want the crime rate to be low; punishments, mild; and taxes used to finance the essential activities of the city’s executive branch, low. (Punishments should be minimal; imagine your son steals an apple; you wouldn’t want him sentenced to 20 to life, would you? I mean, we are not barbarians, are we?) However, these are dependent variables, and improving one can worsen the other. For example, if (3) more money is allocated by the city toward execution of justice, then this will cause more criminals to be caught, thereby (1) deterring the rest of their brethren more efficiently. This in turn will mean that (2) the severity of punishments may have to be lessened, (1) decreasing deterrence slightly, if our utilitarian approach is to be satisfied.

How do this way of making law and judge-made punishments fit together? I think the Good Lord has given us humans 2 ways of laying down the legal system: top down by the legislature and bottom up by the judicial branch. The former is more sophisticated but harder to implement correctly. The latter is less clever but more tractable.

Victimless crimes like drug use or non-compliance with abstruse and anti-social government regulations clearly present difficulties whether we look at them from the point of view of the legislator or the judge.

The most obvious point is that there is no restitution that can be ordered for victimless crimes.

The legislator should be minimizing the combined cost of (crime + punishment + enforcement). But without a victim, the cost of an alleged crime is zero. Normally, both severity of punishment and gov’t spending are inversely correlated with the crime rate, but since both are expensive to society, there is an optimal amount of crime to be permitted. With the cost of victimless crimes to society being zero, unless one counts somehow the alleged “harm to oneself” from smoking pot, say, neither punishment nor enforcement are balanced by any measurable benefits. The anti-drug legislation creates pure social costs which are limited only by the ardor of the drug warriors. But fanaticism in trying to stamp out “sin” is not a proper basis for a civil government.

As for the judge, without a victim, there is no rehabilitation, consisting, again, in duplicating the victim’s sorrow in the assailant’s heart.

Nor is there retribution which also requires proportionality.

Judicial deterrence consists in trying to calculate whether an extra dose of punishment to the criminal being sentenced is or is not outweighed by fewer crimes, as the criminal’s buddies learn of their friend’s fate and adjust their behavior accordingly. So, suppose an extra year in prison to a given drug offender would indeed deter 2 people from using cocaine. But with no victims, there is no clear and obvious suffering to be balanced interpersonally. At the very least, then, deterring drug use is a some kind of political issue, such that complete and strict instructions for sentencing must be issued to judges from the legislative branch. The judge’s hands will be tied (and this in itself may be a violation of the separation of powers); he won’t be allowed to calculate. As a result, for victimless crimes, a judge cannot use the deterrence theory of punishment, either.

What remains is condemnation, and judges are indeed willy-nilly guided into using this most ignoble and last-resort theory. Drug users are considered to be animals, to be isolated from society as the worst kind of scum. That is the mentality actually cultivated by an anti-drug movement that started with a desire to improve human character.

Hume is making strange arguments in 3.1.1 of A Treatise of Human Nature. Consider the action of killing one’s parent. Take an oak which drops its seed into the ground which “produces a sapling below it, which springing up by degrees, at last overtops and destroys the parent tree”; is that an immoral act of parricide? Hume reasons:

Is not the one tree the cause of other’s existence; and the latter the cause of the destruction of the former, in the same manner as when a child murders his parent? ‘Tis not sufficient to reply, that a choice or will is wanting. For in the case of parricide, a will does not give rise to any different relations, but is only the cause from which the action is derived; and consequently produces the same relations, that in the oak or elm arise from some other principles. … Here then the same relations have different causes; but still the relations are the same: And as their discovery is not in both cases attended with a notion of immorality, it follows, that that notion does not arise from such a discovery.

Well, relations can be described with more or fewer details, can’t they? We can call the situation Hume describes as

(a) “an event of some importance to something”;
(b) “the death of a biological organism”;
(c) “the killing by an offspring organism of its parent”; or finally
(d) “a human child killing his father.”

The first three descriptions are not precise enough to be “attended with a notion of immorality,” but (d) is. (d) has enough information to let us evaluate it ethically.

Hume goes on that if immorality were something perceived by the intellect, then it would first have to exist “out there.” But then a wolf killing a farmer’s sheep would still commit a crime, even if the wolf is too stupid to realize it. A human sheep thief is as guilty as a canine one, except the human knows it, and the wolf does not. And that doesn’t make sense.

Again the matter comes down to the description of the event. “The killing of a sheep by a living creature” is not sufficient to tell us whether the killing was criminal or not. “The killing of a sheep by a human thief / wolf” is. Why? we may ask.

We can establish a simple correspondence: there is a crime if and only if punishment for any of our 4 reasons is warranted.

Clearly, a wolf cannot be rehabilitated, unless the punishment is part of the process of taming it. (Even then, you would teach the wolf to fear the master not love him, as rehabilitating humans does.) It is ordained from above that a wolf shall find sustenance by eating sheep, and there is nothing anyone can do to change that fact of nature.

Retribution to the wolf, as if dispensing “justice” to it for having dared to raise its paws against its superior (or something like that), is blasphemy.

Other wolves will not come to fear punishment by watching you punish the guilty wolf; so they cannot be deterred.

Nor, finally, can wolves be meaningfully condemned, this being reserved for human beings who are part of the moral community. One cannot kill a man but only if he turns into a man dog or wolf, as it were; and then only lawfully by order of a judge, etc. But one can kill a wild wolf for any reason at all; or indeed for no reason.

Thus, since it can be useful to punish humans but not wolves, we conclude that humans can be morally guilty, while wolves cannot be, and this by reason alone.

In an early article, Robert Murphy objects to the adequacy of utilitarianism:

The fundamental problem with utilitarianism is this: Despite a succession of ingenious proponents, its advocates have yet to explain why the individual should behave morally. The fact that we are all better off if we all behave morally is utterly true and utterly irrelevant. (Such an argument violates the cherished Austrian precepts of marginalism and individualism.)

It is true that a society suffering from widespread theft would be intolerable, even from a thief’s point of view, but any individual robbery has very little impact on the overall level of crime.

The focus of utilitarianism is social. A pure utilitarian has little to say to any individual on why he should not be a thief. But he does recommend a social policy of catching and punishing thieves. (According to pure utilitarianism, then, one would not want exploit others, because he risks being caught and fined or imprisoned.) The utilitarian idea is to structure the incentives of the legal system to minimize the total amount of violence people (including the state) inflict on one another. Utilitarianism counsels rewarding and encouraging good deeds and discouraging behavior that harms social cooperation. And that’s it! It thus addresses itself to society and its agent, the state.

Murphy goes on:

Moreover, if everyone agreed with Yeager and other utilitarians that it were foolish to sacrifice oneself in these rare instances, an element of doubt would arise in all social interactions.

Although pangs of conscience might be a wonderful evolutionary byproduct, it would be in the interest of everyone to steel himself against such “irrational” feelings (while still behaving in accordance with them under normal circumstances).

One’s very life might one day depend on it.

Here there is a truth-digging game going on between society and individuals. Individual soldiers will want to hide their cowardice and merely pretend to be willing to sacrifice their lives for the cause (thereby getting paid for doing no work), while society has an incentive to detect their cheating and punish them for it or at least refuse to hire them. Utilitarianism thus addresses itself not to the soldier contemplating whether to sacrifice himself for the greater good, but to the general choosing the soldiers who, in his estimation, are most likely to follow orders even unto death.

It does not say to the soldier: “Sacrifice yourself.” Rather, it says to the general: “Pick self-sacrificing soldiers.” And it is an empirically true statement that people do not always behave selfishly, carefully hiding their egoism until the time comes when they are put to the test, and then to everyone’s consternation they up and do their own thing. Sometimes society wins; other times individuals win (perhaps unjustly and wickedly) at the expense of society.

A soldier may indeed be directed to sacrifice himself but not by utilitarianism but by the contract he must have signed with the military before going off to war. He is duty-bound to act as his contract stipulates, including sacrifice himself in certain situations.

Further:

Utilitarianism seems to rob the words good and bad of their specifically ethical character. The utilitarian cannot make a distinction between guilt and simple error. The person who robs a bank to achieve happiness has made a mistake in qualitatively the same sense as a person who overcooks a steak.

Once again, we don’t care about whether the robber acted virtuously or not. All that pure utilitarianism commands is that the police try to deter and minimize bank robberies as much as possible consistent with other goals. The rule according to which robberies go unpunished results in an unhappy society, despite the benefits to the robbers.

Even individual robbers have an interest in society being tough on crimes. Weak-willed robbers will be deterred and steered into productive occupations, both benefiting society and perhaps saving their souls. Especially competent robbers will still get away with their crimes but will enjoy diminished competition and a productive society, so they can actually spend their ill-gotten money. The losers of a regime that efficiently prosecutes robbers will be the stupid criminals who are neither deterred by the law nor evade detection and capture. But their misery is a utilitarian price we pay for a happy society overall.

Now it is true that utilitarianism ignores the obvious point that the robber commits an injustice. This is not a failure of this ethical theory but merely its limitation. Other theories will need to be brought to bear to complement utilitarianism.

It follows that “we as a society” must calibrate the legal system and other methods of apportioning praise and blame so as to promote general happiness. As David Friedman writes, contrasting the economic approach to law with other approaches, “An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero — and asks whether you really want to make it in the interest of the robbers to murder their victims.” (Law’s Order, 8)

As to the fate of the robber’s eternal soul utilitarianism is silent.

Pure utilitarianism teaches people how to attain their goals (which may include the goals of others toward whom they feel benevolent).

On the level of the individual, utilitarianism collapses into the virtue of prudence-in-act. (Of course, utilitarianism does not lose its character as social even here, because this is merely a limiting case wherein the society consists of a single individual.)

On the level of society, it also teaches people how to hinder the goals of those whose actions would destroy social cooperation if left unchecked. A utilitarian thus seeks to educate the public about the actual means to their actual ends, enhance their practical wisdom.

In the final analysis, utilitarianism attempts to spread the virtue of prudence far and wide. That does not mean there are no other crucial virtues, such as justice, that would be dealt with by other ethical theories. Utilitarianism is not worthless, merely incomplete.

I have written a number of posts on the 4 theories of punishment and compared and contrasted them. In the order of decreasing sophistication, the theories are:

Rehabilitation

Retribution

Deterrence

Condemnation

Here is another way to think of these, with respect to proportionality.

For rehabilitation, fully proportionate punishment, i.e., “an eye for an eye,” is the upper limit. The idea again is to inflict the exact same type of pain on a dull but still basically decent or at least reformable person to cause him to realize exactly how he hurt his victim and be horrified by it. If less than proportionate punishment suffices to teach him this lesson, then rehabilitation, and justice on the whole, are well-served.

This type of punishment is an act of charity to the offender and an instance of fraternal correction.

Retribution is an act of fully “deflecting” an unjust attack back onto the criminal. The reaction is opposite and equal to the action; hence a proper retribution will observe perfect proportionality. Or we can say that order is restored when the criminal forsakes his rights to the exact same extent to which he violated his victim’s rights. Unlike rehabilitation, there is no need to hurt in the same way, only with the same amount of suffering.

This signifies not grace and love but personal nature: the criminal is treated according to natural morality but is still regarded as a person.

Deterrence is marked by the fact that some criminals will evade detection and punishment. Purely proportionate punishment will then fail adequately to deter. If 90% of criminals are uncaught, then the punishment to the unlucky 10% must be considerably more severe than a mere eye for an eye, in order to create sufficient threat to the potential future lawbreakers. Their calculations of the profitability of a crime should deter many of them despite a non-zero chance of getting away with the crime.

Thus, punishments to deter will tend to be more than proportionate.

This signifies impersonal nature; the criminal’s happiness is considered, but for all that, he is used as a mere tool for the sake of a separate social good.

Finally, for condemnation, the punishment is in a sense infinite and observes no proportionality at all with the crime. Hell would be the paradigmatic example; but humans can create their own hells, too, through sentences of execution or life imprisonment without possibility of parole. The idea here is that the criminal is totally depraved, and if released would continue his crime spree. He is permanently cut off from society as if a cancerous cell from a body and neutralized thereby.

No, says Mills, because none of the 3 theories of punishment he lists, deterrence, rehabilitation, and “separation,” are fulfilled by eternal torture.

Now first of all, there are 4 not 3 theories of punishment, the last one being retribution. The purpose of retribution is to restore order in the universe that was unseemly upset by a crime. A criminal has dared to raise his miserable hand against the holy right of another. He has bitten off some happiness for himself that he does not deserve, despising his fellow men in the process. By violating another’s rights, he treated him with contempt, as filth, as a tool, as someone with no moral standing, not as a man with innate dignity, and so unjustly. Justice demands that the offender’s ill-gotten gains be taken away and that he lose his social status to the same extent to which he viciously took it away from his victim.

Further, “separation” is better called condemnation or protection of society. One is permanently cut off from society as a wicked cancerous cell and “burned” as befits such a incorrigibly corrupt creature. But I’ve written on this extensively before.

Hell features precisely permanent and complete condemnation and not the other 3 theories. Mills objects:

(1) God, after a “sinner’s” death, could return the “sinner’s soul” to a state of nonexistence, as it was before his birth.

(2) God, after a “sinner’s” death, could transport the “sinner’s soul” to a location away from Heaven, but a location wherein he would not undergo pointless torture. (184)

However, (1) is impossible, since human souls or at least the immaterial intellects are naturally immortal. As God cannot turn Socrates into a pig (or vice versa), or make 2 + 2 be equal to 5, neither can He violate the essence of a man and annihilate his soul.

(2) will not work either, because the kingdom of heaven is a world without end. It extends everywhere except hell. The liberties of the blessed to visit any part of heaven, including even its lower but non-hellish regions, are unrestricted. Therefore, if a sinner’s soul ends up anywhere but hell, it will not be truly cut off from the communion of saints.

But why eternal torture? Well, humans can pursue happiness when their nature is intact, pure, and uncorrupt. Now the most general components of man are: will, intellect, and power. The soul is will + immaterial ½ of the intellect. The body is the material ½ of intellect + bodily power. Physical death is separation of body from the soul. It is surely a terrible thing. So, man’s body is already corruptible. But one can, through other-destroying crimes and self-destroying sins, corrupt his soul also. Hence spiritual death, the “second death” mentioned in Rev 21:8, further separates within the soul the will from the intellect. This is infinitely worse but essentially is self-inflicted. The everlasting torment of the intellect that remains is “natural” to a soul so fully corrupted.

The Catholic doctrine of purgatory further argues that while hell is punishment for the sake of condemnation, purgatory can indeed be punishment for the sake of retribution, deterrence, or rehabilitation. Follow these links for the full argument:

For example, retribution is suggested by: “Settle with your opponent quickly while on the way to court with him. Otherwise your opponent will hand you over to the judge, and the judge will hand you over to the guard, and you will be thrown into prison. Amen, I say to you, you will not be released until you have paid the last penny.” (Mt 5:25-26)